Singh (Migration)

[2022] AATA 2402

Singh (Migration) [2022] AATA 2402 (6 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh

REPRESENTATIVE:  Mr Jonathan Stephen Flannery (MARN: 9901555)

CASE NUMBER:  1821091

HOME AFFAIRS REFERENCE(S):          CLF2016/17960

MEMBER:Meredith Jackson

DATE:6 April 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 06 April 2022 at 3:54pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – adverse information – relationship is non-genuine and is only existent for the purpose of obtaining a migration outcome – not satisfied the relationship between the parties was genuine and continuing – child was a product of another relationship –decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 December 2013 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 October 2011 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the evidence provided was not sufficient to demonstrate that the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act. Consequently, the delegate was not satisfied that the applicant meets subclause 820.211(2)(a) of the Regulations and therefore does not meet clause 820.211, which is a criterion that must be satisfied for the grant of the visa. The applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Nyanial Kong, her mother Ms Aliza Nabil Kuang and Mr Singh’s sister-in-law Harvinder Kaur.

4.    The applicant was represented in relation to the review by his representative, Mr Jonathan Stephen Flannery. Mr Flannery did not attend the hearing.

5.    For the following reasons, I have concluded that the decision under review should be affirmed.

BACKGROUND

6.    You are the visa applicant Mr Gurvinder Singh. You were born in 1990, a national of India. In November 2009, you first arrived in Australia as the holder of a student visa for the vocational sector. Your sponsor is Ms Nyanial Kong, whom you married on 19 June 2011. Ms Kong is an Australian citizen born in Sudan in 1992. You run a security business and you made Ms Kong a shareholder and officeholder in your company. There are no children of the marriage, however Ms Kong has two children, one explained as the result of a high school pregnancy and the other, whom you initially claimed was your child, was conceived and born within the marriage to a different father, whom you and your sponsor state to be your former co-tenant, Mr [Mr A].

7.    Your immigration history features in the delegate’s decision. It indicates you applied for the partner visa under review on 24 October 2011, and while that application was on foot, you lodged a business sponsorship nomination and a temporary skilled visa application You were not granted a skilled visa. Between 2012 and 2017, you travelled in and out of Australia frequently for up to three months at a time. You state that your sponsor joined you on one such trip, for your brother’s wedding.

8.    On 9 July 2017, the partner visa was also refused for the reason that you did not meet public interest criterion (PIC) 4020. Following review, the Tribunal, separately constituted, remitted the decision for consideration of the remaining criteria for a partner visa, on the basis that at the time of application, there was no requirement for you to meet PIC 4020.

Primary decision – adverse information

9.    You provided a copy of the delegate’s decision for the matter under review. I have read the decision, which may be fairly resolved into the following synopsis.

1. The decision concluded that you were not the spouse or de facto partner of the sponsor at the time of the visa application. The decision referenced information received by the department that did not support your application, that is, that you had obtained fraudulent documents in relation to a visa application; you had entered into a contrived relationship to obtain a permanent visa; your relationship with your sponsor was not genuine; you paid Ms Kong to sponsor you for the visa; and you had been arranging contrived marriages for other individuals in exchange for substantial payments. This information, the delegate states, was sent to you on 12 February 2015. You responded on 4 March 2015 with a statutory declaration denying the allegations.

2. The delegate noted your claim in the visa application, and the statement of the sponsor, that there is a child of the relationship, [Ms B], born in [year]. Further, the delegate noted that the birth certificate indicated that her other child, [age] year-old [Ms C], was a previous child of your relationship with Ms Kong. The delegate found this was not supported by the evidence, and that the birth certificate for the child contained false information that you are her father, and there were conflicting statements by your sponsor that [Ms C] was the result of a high school pregnancy.

3. Further, an overseas site visit by Australian authorities in India, was conducted five years after your marriage. On 22 March 2016 the Department wrote to you regarding the visit by Australian authorities to your parental home village in Punjab. They found that your parents had little knowledge of your sponsor; your mother was unable to correctly identify her from photographs; your parents did not demonstrate knowledge of your marriage or their purported grandchild nor understand what they had said in their sworn affidavits. Amid an emphasis on marriage and family in your culture; neighbours who were interviewed said you were unmarried, but they knew your brother was married. The visiting officers concluded your relationship was not genuine. The department put this and more adverse information to you: your Facebook page and that of your sponsor did not support that you are in a genuine relationship; your sponsor was engaged to [Mr A], and your claimed child of the relationship (born during your marriage), was acknowledged by [Mr A]’s family as the child of [Mr A] and your sponsor. On 23 May 2016, DNA testing from Sonic Genetics, requested by the Department, showed you are not the biological father of the child. The delegate’s decision records that you responded on 16 June 2016 through your representative, stating that you were surprised by the matters raised and DNA results. You did not comment on the other information, and you maintained the relationship is genuine.

Primary decision – immigration timeline

1. The primary decision provides your migration timeline, quoted verbatim below, which is drawn from departmental records:

   • On 28 April 2009, you arrived in Australia as the holder of a Student (subclass 572) visa valid until 27 October 2011;
   • On 10 January 2011, you departed Australia;
   • On 14 February 2011, you arrived in Australia as the holder of a Student (subclass 572) visa;
   • On 24 October 2011 you lodged a Partner (subclass 820/801) visa application and were subsequently granted a Bridging (subclass 010) visa;
   • On 2 April 2012, you lodged and were granted a Bridging (subclass 020) visa B;
   • On 4 April 2012, you departed Australia;
   • On 16 May 2012, you arrived in Australia as the holder of a Bridging (subclass 020) visa B;
   • On 25 July 2012, you lodged and were granted a Bridging (subclass 020) visa B;
   • On 30 July 2012, you departed Australia;
   • On 24 September 2012, you arrived in Australia as the holder of a Bridging (subclass 020) visa B;
   • On 22 February 2013, you lodged and were granted a Bridging (subclass 020) visa B;
   • On 25 February 2013, you departed Australia;
   • On 2 April 2013, you lodged a Business Sponsorship Nomination for Gita Services Group Pty Ltd (trading as 7-11 Toowoomba) and a Temporary Work (skilled) (subclass 457) visa application;
   • On 2 May 2013, you arrived in Australia as the holder of a Bridging (subclass 020) visa B;
   • On 3 June 2013, you lodged and were granted a Bridging (subclass 020) visa B;
   • On 3 June 2013, you departed Australia;16910] DIAC Decision
   • On 22 August 2013, you arrived in Australia as the holder of a Bridging (subclass 020) visa B;
   • On 23 December 2013, your employer nomination for Gita Services Group Pty Ltd was refused;
   • On 13 February 2014, your Temporary Work (skilled) (subclass 457) visa application was refused;
   • On 16 March 2015, you lodged and were granted a Bridging (subclass 020) visa B;
   • On 18 March 2015, you departed Australia;
   • On 15 April 2015, you arrived in Australia as the holder of a Bridging (subclass 020) visa B;
   • On 21 February 2017, you departed Australia;
   • On 30 March 2017, you arrived in Australia as the holder of a Bridging (subclass 020) visa B;
   • On 4 July 2017, your Partner (subclass 820/801) visa application was refused on the criterion PIC 4020;
   • On 19 July 2017, you lodged a review of the Departments decision to refuse your visa application with the Administration Appeals Tribunal;
   • On 22 February 2018, the AAT remitted the application to the Department;
   • You are the current holder of a Bridging (subclass 020) visa B;
   • During your time in Australia, you have (been) a lawful citizen in Australia.

2. You have claimed to the Tribunal that you only applied for one visa, the business visa which was refused in 2014. The Tribunal accepts you misunderstood that your employer nomination was refused in 2013.

Primary decision – conclusions

1. The delegate examined the financial, social, household and commitment aspects of your relationship and found that you did not meet the definition of spouse or de facto partner under section 5F or 5CB of the Act and did not meet cl 820.211 of the Regulations at the time of decision.

2. The delegate noted that at the time of the primary decision you were not the holder of a Subclass 820 visa and did not meet subclauses 801.221(2), (2A) (3) (4) (5) (6) and you did not meet the requirements for cl 801.221(8) and therefore you failed to satisfy the requirements of cl 801.221 at the time of the delegate’s decision.

ISSUES AND LAW

1. There is a two-stage process for onshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

2. The issue in the present case is whether the applicant is the spouse or de facto partner of his sponsor at the time of application and at the time of this decision.

Whether the parties are in a spouse or de facto relationship

1. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

2. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. With the visa application, you provided a Queensland Marriage certificate for your marriage performed on 19 June 2011 in Woodridge, Queensland. On the evidence, you were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

Claims

1. Your claims on review are that you and the sponsor met on 26 November 2010 and married on 19 June 2011 and that the relationship was genuine at the time of the visa application, you have been in the relationship for nine years and your relationship continues to be genuine at the time of this decision.

2. You provided limited documentation to the Tribunal in support of your claims and you initially stated in the hearing that you had nothing to add and would leave it to those documents to make your case, however you changed your position and provided oral evidence in the hearing, which I shall return to shortly. The contemporary documents you provided in support of the claim on review include the delegate’s decision; joint utility bills from May 2018 to December 2021; a joint water bill of 3 August 2021; NBN bills for the sponsor to December 2021; registration renewal documents in joint names for a Hyundai; a buyer’s order for a Toyota purchased for your security business Checkmate Pty Ltd;  a tenant ledger for shared tenancies from October 2018 to February 2022; tenancy agreement for Taigum premises (2019-2020) where tenants are named as: Gurvinder Singh, Dharminder Singh and Harpreet Kaur, and Nyanial Kong, in that order; one for a subsequent tenancy at the Taigum premises with the same parties (2020-2021); two at that address with tenants as Gurvinder Singh, Amandeep Singh Hanjra and Nyanial Kong (2018-2019 and 2021).

3. You also provided letters and statutory declarations from persons supporting the relationship; various documents regarding Checkmate Pty Ltd’s corporate status and its most recent tax return; a company statement showing the two parties as shareholders and office holders; Job Active appointment for your sponsor who was looking for work; home insurance claims document in joint names; your sponsor’s Will, naming you as a beneficiary; a State government address change document. You have provided many documents to the Tribunal over the course of your application and review process, and I have had reference to them as they appear in Tribunal and Departmental files.

The hearing

1. As indicated earlier, at the commencement of the hearing you stated that you did not wish to give oral evidence, because, you said, you had provided all the material you wished to provide. You stated that your representative was not planning to attend the hearing because, he told you, in this type of hearing, the representative is unable to say anything.

2. You did not respond to the Tribunal’s hearing invitation, however you indicated in a hearing information form that you would be accompanied by “5+” witnesses. You arrived at the hearing accompanied by eight persons whom you said were available to give evidence. They were Paramjeet Matharu; Ekam Bakshi; Aliza Kuang; Arvinerder Singh; Harman Sidhu; Mandeep Kaur; Harvinder Kaur; Shane Logan; and your sponsor, Nyanial Kong. The Tribunal and you agreed that the need to hear from all or some of the witnesses could be determined as the hearing went along. It was agreed your sponsor was a priority, and you also nominated her mother Aliza Kuang, who cares for her two children full-time, and your sister-in-law Harvinder Kaur, who was in India with you on a trip for your brother’s wedding with the sponsor, and observed how the cross-cultural issues in your relationship played out. Harman Sidhu, Harwinder Kaur, Edkam Bakshi and Avinerder Singh had provided statutory declarations which were sufficient, in my considered view, to communicate to me that they fully supported your relationship. You did not ask me to hear from further witnesses. I afford the statutory declarations some weight in your favour.

Sponsor not in a condition to give evidence

1. As indicated above, your sponsor Nyanial Kong, her mother Alzia Kuang and Harvinder Kaur were to give oral evidence in support of your claims. Ms Kong was first to appear. She gave her name correctly and made the affirmation and questioning about the status of the relationship commenced. Ms Kong responded to the first question, about the nature of the relationship, as follows: “If there are going to be these kind of questions, can I have another day?” The Tribunal asked why her evidence could not be given, in that she was present and had been sworn in. Ms Kong responded, “I have had some drink – can I have another day to talk to you?” It was evident to me that Ms Kong was not in a strong position to give competent evidence. You were consulted about this. You did not ask for a second hearing. In the circumstances, as sudden and disarming as they were, I did not seek to hear from Ms Kong further, and I also did not provide for a separate hearing for Ms Kong. I considered this and discussed it with you and concluded that as you had described her as “an alcoholic” and she had attended the existing hearing intoxicated when the grant of her spouse’s partner visa was at stake, she could not be relied upon to present in a well-ordered state on any other occasion and the Tribunal had given you an opportunity for her to appear as a witness. You put no counter argument to my view. After some further discussion, it was agreed that a fair outcome would be that the sponsor submit, within seven days of the hearing, a statutory declaration covering any statements she wished to provide to support that the two of you are in a genuine relationship. You have since submitted that declaration.

Are the other requirements for a spouse relationship met?

1. The Tribunal has considered whether the other requirements for a spousal relationship are met by considering the evidence against the requirements of r. 1.15A(3)(a), (b), (c) and (d), and other circumstances of the relationship under reg 1.15A(2), which are outlined below.

Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

1. In support of the financial aspects of the relationship, you stated that you and your spouse draw an income from his business, Checkmate Pty Ltd. You take a salary of about $50,000 a year, while Ms Kong, as a shareholder, draws the company dividend of around $5,000-$7000 a year. You have provided no personal bank statements on review, however the delegate’s decision records that you provided various financial statements from 2012 to 2013 which failed to demonstrate pooling of resources; you also provided some credit card statements in your sole name from 2015. To the Tribunal, you provided a company tax return showing total income of $505,368 in 2021 and a total profit of $26,2014 after expenses; along with information about the company from 2018.

1. You state that your household expenses “pretty much all” are paid for through the company, and while you have a joint account with the sponsor for grocery shopping and so on, it is not used much, because all other expenses are paid by the company. You state that you and your sponsor cannot own property together because of your visa status. You have two company cars which are rotated for night patrols and home use. You claim to share your home in Taigum with two young, single students, one of whom is 21 and does not pay rent. You say that currently, as one of the present two tenants is a “21 year old kid”, he does not pay rent.

2. A Linkt toll statement, Hostpapa IT account and a joint fuel card provided indicate that these of your routine expenses are incurred by the company and distributed to you and the sponsor as its office holders.

3. A Netbank Super statement you provided indicates you nominated Nyanial Kong and [Ms B] as 50 per cent beneficiaries of your superannuation account. Home insurance reflects you as joint policy holders. I afford these provisions some weight.

4. Having considered the evidence, the Tribunal concludes that you do not own personal assets together, and while you each have liabilities arising from the fact of your marriage and your obligations as directors, you do not share any other personal liabilities. On 16 March 2018, your spouse was appointed a director of Checkmate Pty Ltd, which was established in 2012, and given 100 ordinary shares. You state that any pooling of your resources is through the company structure. I have carefully considered your financial circumstances and find that they do not demonstrate that you have financial arrangements consistent with a genuine relationship; they are those of joint shareholders in a commercial venture and people who share premises. While it is not the least uncommon for spouses to own businesses together, I am not convinced that in the arrangements you have described, there is enough to the financial aspects of your relationship to demonstrate you are in a spousal relationship.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. You gave evidence that you occupy shared accommodation with your spouse, a claim confirmed in the various tenancy agreements you have provided, and with other people. It is clear that your spouse has had a significant relationship with one of your co-tenants, [Mr A], who also provided a statutory declaration in support of your marriage as a “healthy, happy couple”. You have acknowledged that your spouse had an intimate relationship with [Mr A] while the three of you were living together. You stated that it developed while you were working night shifts in the company. It resulted in the birth of a child whom you initially claimed was your child. DNA tests did not support your claim, which you said surprised you, but you now accept that [Mr A] is the father of [Ms B], who was born within your marriage in [year], [number] years after you had married your sponsor. There is considerable information in the primary decision pointing to your sponsor and [Mr A] having formed their relationship that existed within your marriage and at times in your home, and you have not disputed this on review. You stated in the hearing that it is over, as a relationship: “[Mr A], he’s now gone. He is not any more in Brisbane.” You stated, and the sponsor’s mother Aliza Kuang confirmed in her oral evidence, that your sponsor’s mother is now the full-time carer of your sponsor’s two children, and that the children live with her rather than with you as a family. You claim that your sponsor has currently living with you. When asked, you hesitated to state the ages of the two children, and you do not claim that you have a role in their lives, however I note your sponsor has claimed that you do.

2. You state that your sponsor has developed alcoholism, and there is reason to consider that a credible claim given her presentation at the hearing, albeit you provide no documentary evidence of such an affliction. I shall return to this topic. Your spouse’s condition, you say, has led to a lot of disruption, and this has meant among other things, that the running of the household has largely fallen to you. On balance, I accept that your wife is regularly affected by alcohol. I also accept that your children live with their maternal grandmother for some reason, primarily the drinking habit of their mother. I find it unlikely, however, that your spouse does not live with her mother and her own children. As to sharing of housework, you stated that you both do it, but because of her addiction, it mostly falls to you. You say you are the organised one,  but she tries to help. The Tribunal has considered the nature of your household and finds you do not have joint responsibility for care and support of children; your living arrangements are that of a shared household at best; but for the purposes of the decision I accept that you share, to some extent, the basic housework. Having considered the evidence in total however, in particular the evidence that a relationship existed between your spouse and another member of the household, I am not satisfied that the nature of your household is consistent with that of a genuine spousal relationship.

Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

1. When asked whether you and your spouse represent yourselves as a married couple and undertake joint social activities, you stated: “As a married couple, occasionally we go to parties and stuff, we used to go out, but the last six months it has been too difficult, we can go out if she is not drunk.”

2. With your application for the visa, and on further review you provided a number of statutory declarations, several of which were from people who shared your home or knew you through your business. There is some similarity in these statements, however they attest to your relationship as genuine at the time. One of the statements, as referred to above, is from [Mr A] and dated 22 January 2014. [Mr A] is acknowledged as the father of your sponsor’s child, conceived [in a year]. Your declarants in 2022 are friends, colleagues and relatives, most of whom are supportive of your relationship or character: Shane Logan operates a security business and claims you are honest and truthful; others from your community or household; and include Harwinder Kaur, who also gave evidence in the hearing. Ms Kaur states she first met your spouse in India, while she was herself awaiting her Australian visa, and she and her husband then lived with you in your Australian share house from 2018-2019. She claims while in India, she assisted your spouse to navigate the cultural differences that emerged around the time of your brother’s traditional Sikh wedding in India. She stated that the difference in the cultures was a big barrier, she had to translate and explain everything. She said your family in India are not educated to accept other cultures and the sponsor did not stay the whole time intended. She stated that the sponsor does drink too much, and she and her husband encourage her to control it and look after the long term. She believes you and your spouse are happy together. I afford these statements some weight in your favour.

3. In your evidence you confirmed that your parents did not agree to your marriage into a different culture, and this was among the reasons your spouse returned to Australia after two or three weeks, because barriers were so big; it was hard, and the facilities in the village, and a power failure, did not suit your wife, who has been in Australia since childhood. Your wife was [pregnant] at the time with [Mr A]’s child.

4. I have considered your evidence and accept that the cross-cultural considerations are a factor in your family life but they do not fully explain your parents’ lack of engagement with your sponsor. The Tribunal accepts that your present yourselves to many Australian residents as a married couple and many have stated that your marriage is happy. The Tribunal accepts that your social life is hampered by your sponsor’s issues with alcohol. On balance I am not satisfied that your presentation to others and the social aspects of your relationship are sufficiently substantive to warrant significant weight in your favour, but I afford them a small amount.

Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. You have been married to your sponsor for nine of the 10 years since you met. You have provided evidence that you shared your residences with others for much of that period, including your declarant [Mr A]. You say your relationship survived a long affair with [Mr A], with whom she had a child [number] years after she married you and that while your marriage continued, she was simultaneously positioned on Facebook as [Mr A]’s fiancee. You claim that [Mr A] has now left your home, you and your spouse have grown closer, however you confirm her children have gone to live with her mother, rather than in your family unit. You stated that the addiction to alcohol has made the relationship difficult but not impossible to conduct. You acknowledged that you cannot expect to have children with your spouse in the near term because of her addiction.

2. You have demonstrated by your persistence in seeking permanent visas that you wish to obtain residency and extend your already long stay in Australia. Despite your visa issues, you have established a security company and made your wife a shareholder and you pay your (and her) expenses through that business. I acknowledge the outcome of this review is very important to your goals and your hearing was a major step in that process. In such circumstances, therefore, you would be expected to have the support of your spouse at the hearing. I acknowledge that she attended the 11am hearing, but she did so in a demonstrably inebriated state, stating, after being outside the hearing room for a time while you gave evidence, that she was not in a position to give evidence that day because she had “had some drink”, adding that she could do so however, if I gave her another day on which to do it.

3. The Tribunal as described earlier, afforded your sponsor the opportunity to provide a witness statement in the days after the hearing. On 1 April 2022 she signed a statutory declaration about your relationship that you provided to the Tribunal. She stated:

   “I want to stay with Gurwinder Singh for rest of my life. we spend more then decade together.My relationship with Gurvinder Singh was one of the biggest moment of my life. Gurvinder has always loved me unconditionally and has always looked after my family even when I was not in right state of my mind. He has really good bonding
   with my sisters, mother and children. We both are living a very happy marriage life. | like to go out with him and his friends at sikh tempal & religious fest. We both try to spend most of the time together and always go together whether it dinner at friends place, any family get together or any other functions and parties. He taught me how cook Indian food. We both love to eat butter chicken at home and restaurent .
   Every relation has good and bad time, My relationship with [Mr A] was the biggest mistake of my life. I was feeling depressed and up for different reasons.| had miscarriage year before. It was a brief relationship, built in the influence of alcohol. When Gary goes to security work at night time , I felt very lonely &
   occasionally shared drink with [Mr A]. This resulted in this affair and a Child. There was no mutual affection, love,or care in the relationship with [Mr A]. How and why I got attracted to him even though I don't know myself. I was not able to control myself. Since 2016 I have never seen [Mr A] again, and | also dont know about his whereabouts. He had never come to see his daughter. My mother usually looks after my both children and at times Gurvinder also helps her to look after the children. [Mr A] has no link with kids or myself and my mother. Gurvinder along with his business and work is taking care of myself and my children. I realised the value of trust, understanding, and care after I left [Mr A]. Since that affair with [Mr A] is over | have never thought of another affair. I am trying my best to quit my alcohol intake as well, so that I can become a better mother and life  partner, we love each other so much. I request you to please grant visa for Gurvinder Singh so we can live happily together as I don’t want to go overseas and leave my children behind.

4. You stated at the hearing that you did not know about the baby’s parentage until you saw the DNA proof. You mentioned on prompting that your spouse also had a miscarriage, she fell in the bathroom and lost the baby. You stated you were not sure when this happened.

5. Having considered the nature of any commitment in your 10 year relationship, I am satisfied that you have maintained some form of relationship over that time. I am not satisfied, however, that you provide each other with the degree of companionship and emotional support expected of a long-term relationship. Your claim, and that of your wife, that you are there for the duration is not borne out by the evidence and I am concerned, having considered your evidence, that if the visa were granted, the relationship would end.

Other circumstances – adverse information

1. The primary decision records that in the course of assessing the visa, the department received the following unfavourable information which did not support your application and on 12 February 2015 it provided the information to you and your sponsor. It was that:

   a.You had obtained fraudulent documents in relation to a visa application;

   b.You had entered into a contrived relationship with your sponsor for the purpose of obtaining a permanent visa;

   c.Your relationship with your sponsor is not genuine;

   d.You paid your sponsor to assist you in obtaining a partner visa by sponsoring you;

   e.You have been arranging contrived marriages for other individuals in exchange for payment.

2. The decision records that you responded with a statutory declaration dated 25 February 2015 in which you denied all the adverse information. Your sponsor did not respond at that time.

3. The primary decision also states that a birth certificate for [Ms B] born  in [year] lists you as the father of the child. It also names [Ms C], aged [age] as a previous child of the relationship. The department pointed out that this did not align with the visa and sponsor application information, which was that [Ms C] had a different father and was the result of a high school pregnancy.

4. The decision states that almost five years after marrying the sponsor, Departmental representatives in New Delhi visited your parents Mandeep Kaur and Sikander Singh at their home in Punjab where they demonstrated they had no knowledge of your sponsor, her family, background, age or occupation. There were no photographs of her or of the two of you together in your parent’s home. Neither parent was aware of the content of relevant affidavits they claimed to have signed and your father was unable to correctly name your sponsor. Neighbours who might be expected to monitor these things closely in your village were under the impression you were unmarried, however they knew about your brother’s marriage and spouse, despite them being overseas.

5. On 22 March 2016, the department put further adverse information to you as follows:

   a.A search of publicly available information on social media shows that you are not in a genuine relationship with his sponsor;

   b.Your sponsor’s Facebook page does not list you as “friends” or in a relationship;

   c.Your sponsor had been in a relationship with another individual, [Mr A] since December 2013;

   d.The claimed child of the relationship, [Ms B] is likely a child of that relationship between your sponsor and [Mr A]; noting that [Mr A]’s Facebook profile states “engaged to Nyanial Mathew”; [Mr A]’s family acknowledges on social media, your sponsor [Mr A] as the parents of [Ms B];

   e.On 22 March 2016, you were requested to obtain DNA testing to prove the relationship between you and [Ms B] born [date].

   f.On 23 May 2016, the results of DNA testing from Sonic Genetics stated that you are not the biological father of [Ms B].

6. On 6 June 2016, the Department verbally invited you to provide a response. On 16 June 2016, you provided a response to the results of the DNA testing, claiming that you were surprised by the results and the delegate notes that you continued to maintain that you and your sponsor were in a genuine relationship. Your sponsor provided a generic personal statement regarding your relationship but did not respond regarding the outcome of DNA testing of [Ms B].

Section 376 Information

1. Departmental files contain information that is covered by two respective certificates issued under s.376 of the Act. The Department of Home Affairs file contains a certificate pursuant to s.376 of the Act dated 22 February 2022. The certificate indicates folio 81 of the Departmental file number CLLF2018/190211 contains information given to the Minister, or to an officer of the Department, in confidence and s.375A does not apply. You were advised at the hearing that a public interest ground for not releasing the information in full was identified in the certificate and accordingly the certificate was considered to be valid. You were advised that the material covered by the certificate was provided in confidence. The Tribunal provided a copy of the certificate to you prior to the hearing and invited you to comment on its validity. You were advised at the hearing that the material covered by the certificate was relevant to the review and I proposed to take it in account. You were advised that I had not made a determination as to the weight to be placed upon the material, if any, and would not do so until affording you the opportunity to make comment, and before making a decision whether to exercise discretion to release the material in full or otherwise. You did not dispute the certificate’s validity.

2. The Tribunal exercised its discretion to release the ‘gist’ or ‘particulars’ of the information to you at the hearing and summarised the information as follows:

   a.A person, familiar with your circumstances, wrote to the Department 8 January 2014 stating that you had paid his sponsor $20,000 for a fake marriage and taken on all her bills, which you put in joint names; that you made her a shareholder and created a joint bank account so you can secure permanent residency.

   b.You are not living in the same place as your sponsor and you are making money from the fraudulent scheme, in that you are taking up to $40,000-$50,000 from new students in Australia to arrange fake marriages.

3. Pursuant to the provisions of s.359AA of the Act, the Tribunal advised you that the aforementioned information would, subject to your comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant him a visa. The Tribunal advised that it had not made up its mind on the information. But it was relevant information as it tended to suggest that at the time of the visa application you did not have a genuine and continuing relationship with the sponsor, or a mutual commitment to a shared life to the exclusion of all others, and that if the Tribunal relied upon the information you would not satisfy cl.820.211 of the Regulations. You were offered additional time to consider the information but you chose to proceed with comments then and there.

1. You stated you were confident that you could identify the informant, and there had been a broken promise over giving you a 10 per cent share of a company. That person  does not want you to stay in Australia, you said, he wants you “out of here”.  You stated you are not involved in anything illegal, that you are in the security business, and no-one has ever complained about you and you have not done anything unlawful as your record shows.

Further section 376 information

1. The Tribunal said a second piece of information is that the Department of Home Affairs file contains a certificate pursuant to s.376 of the Act dated 22 February 2022. The certificate indicates folios 75-77, 92-94, 146-153, 237-238 of the Departmental file number CLLF2016/17960 contains information given to the Minister, or to an officer of the Department, in confidence and s.375A does not apply. A public interest ground for not releasing the information in full was identified in the certificate and accordingly the certificate is valid. The material covered by the certificate was provided in confidence. The Tribunal provided a copy of the certificate to you prior to the hearing and invited you to comment on its validity. You were advised that  the material covered by the certificate was relevant to the review and that I proposed to take it in account. You were also advised that I had not made a determination as to the weight to be placed upon the material, if any, and would not do so until affording you the opportunity to make comment before making a decision whether to exercise discretion to release the material in full to you, or otherwise. I decided to exercise my discretion and release the ‘gist’ or ‘particulars’ of the information to you at the hearing and summarised the information as follows:

   a.That departmental officers had visited your parents’ home in Punjab and found that your parents knew very little about your sponsor, and they were not informed about your marriage until after it happened, that they did not know the date of the marriage and did not attend, they have never been to Australia to see you together; they were vague about a grandchild; and they did not intend to have a traditional wedding in accordance with Indian customs despite the fact that you visited with your spouse for your brother’s wedding; that your father incorrectly stated your spouse’s name; your mother could not correctly identify your sponsor from a photograph; your father did not know how you met; your parents did not know the contents of their signed affidavits; there were no photos in the home of the two of you; that your neighbours did not know about the marriage and considered only your brother was married, and that you were not married.

   b.Further, you had stated that you honestly thought the DNA evidence showing you are not your claimed child’s father was a surprise to you and you were not aware of any other relationship your wife has or had.

2. Pursuant to the provisions of s.359AA of the Act, you were advised that the aforementioned information would, subject to your comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant you a visa. You were advised that I had not made up my mind on the information. The information was relevant as it tended to suggest that at the time of the visa application you did not have a genuine and continuing relationship with your sponsor, or a mutual commitment to a shared life to the exclusion of all others, and that if I relied upon the information you would not satisfy cl.820.211 of the Regulations. You were offered additional time to consider the information but you chose to proceed forthwith.

3. You said of your parents: “The don’t know English, they couldn’t find photos or me or my brother either and he is also married. It’s a new house. The communication barriers were there. They compared my brother’s wedding; the girl was in an arranged marriage. They were not happy with me; they are still not happy. They can’t talk to her so it is only ‘hello how are you’, so how could they know; I did not tell them because I knew they could not accept it. They could not tell the neighbours because they wouldn’t want to. People at the wedding knew she was my wife.

Conclusions

1. In conclusion, and after examining the oral and written evidence before me, I have afforded some of your claims and evidence light weight. You clearly have the support of several people in your friends and professional circles for your relationship being genuine. Your witnesses claim you and your sponsor display a high degree of mutual support, that you are a committed couple in love. You have provided evidence that you have created a financial safety net around your spouse through your business, (however I note she is at times seeking Centrelink support, as you acknowledged). You keep a roof over her head and run a household, albeit this is shared with other persons. I afford all of this some weight.

2. The overall assessment of your relationship, however, seeks among other things to measure the degree of companionship and emotional support you draw from each other and whether you see the relationship as long term. This is where you have provided little evidence to weigh in your favour. You claim you are there for the long term. Your wife has claimed the same. However, there is evidence to the contrary. There is considerable evidence that your spouse has failed spectacularly to emotionally support you throughout your marriage. She had an affair, and a baby, with one of your co-tenants. She concealed the child’s parentage from you, and let you claim the child as yours. She carried on this affair for some considerable time, in your home and potentially elsewhere, while you were working the night shifts in your business. Further, at your hearing, arguably one of the most important moments in your life and hers, she let you down heavily by showing up intoxicated, incapable of giving evidence. There are other concerning signs within this relationship. You stated in the hearing that in your Indian culture, it is expected that marriage is forever and so you must continue it regardless of events, yet the department has considerable evidence that your parents barely knew about the marriage, they did not provide you with a traditional ceremony, your village neighbours did not consider that you are married when asked by the Department, yet they knew your brother was. There was no traditional wedding, your parents showed limited knowledge of your wife and little awareness of their supposed granddaughter.  You claim that you will stay with your wife because you are bound to stay with her by tradition. This lacks credibility. It contrasts with your claimed lack of adherence to Sikh traditions, the rejection of which you spoke of with some pride. You stated in the hearing:

   I don’t follow my culture too much, if I did I would wear the turban and not drink. After two years I adopted western culture. I saw the way others live. My wife is a good woman for me, but if we follow our parents, I cannot cut my hair, I cannot drink. It is too strict. Once I got my visa for Australia I cut my hair and did not want to be with my culture. You can’t do anything in your life, but some aspects I can’t live with. I married her about two years after we met. We spent some dates together and I thought she was a nice woman, we were in love. My parents were angry. I did not tell them, they would not accept it. After a few years they accepted it. In India we spent time with my cousin. They have to because she is my wife. Since I met first time, we have been together for ten years. In this house, there is me, my wife and two other people, they are students. They share the rent and stuff, and they don’t know people in Australia. Their parents contacted me. My wife’s children do not live with us, Nyanial’s mum has custody, because she drinks and is hard to control for the last 2-3 years, she is an alcoholic.. [We] have her Mum to raise the children, I have to take care of Nyanial, she is like a kid now, she’s too depressed, she can be nice and quiet but she when you talk to her its two different people. I am not sure how the marriage is going, sort of ok, but I can’t leave. She lives with me. I break all the rules in the tradition that limit me, but in Australia all of my friends break them, but no one breaks the marriage. I would not contemplate leaving her, we have been together 11 years. I have my own business, I may have to get a business visa. We are not planning children, she is not in a position to raise a child, and I can’t handle two things. If she gets better we will plan again.

3. Further, I have considered the evidence covered by the two certificates. In relation to the first, concerning whether you paid your sponsor to support your application for the Partner visa, I am inclined to believe that there may be some truth to this. It is hard to understand why you would otherwise have effectively sidelined your marriage within your family and why the house you live in contains other people who are listed higher than your spouse on tenancy documents.

4. As to whether you have made a business out of arranging marriages for visas, I find your statement that you have never done anything illegal to be a lukewarm response to a serious allegation. You appeared more concerned with identifying who made the allegation. You did, however, state that it arose from promised financial benefits not delivered. I make no finding on this matter, however, which bears investigation beyond the scope of this review.

5. With regards to the other tranche of adverse information, your parents’ lack of knowledge of your marriage when the Department conducted a site visit, I conclude that your parents did not respond knowledgeably to your marital arrangements and embrace your spouse, because they knew the union to be fake. You claim cross-cultural misunderstanding for your parents’ lack of awareness, and while this is credible in part, there is overwhelming evidence that you are hiding the relationship. Your frequent travel to India throughout your marriage has been solo, except for once, and that trip was cut short by your wife because she did not like your country and conditions and returned home early without seriously embracing them or your family. You deny that it is a contrived marriage. You state you are in it for the long term, and that you must be so, because your culture demands it. Yet you simultaneously eschew your own cultural traditions and position yourself as too western, too modern, for its traditions.

6. Further, I note you do not live with your wife’s children as a family, and while you have provided tenancy records, there is little reliable evidence that you live with your wife at all. She may well live with your mother. Your spouse, you say, is an alcoholic, which I accept may be true, and you say you are unable to have children with her as a result of that, a statement that seemed somewhat half-hearted in tone.

7. Within each of these circumstances in isolation there is some reason to credit some of your claims, but when the adverse factors are combined, and careful consideration of all the prescribed and other circumstances of your relationship is given, it is evident that the marriage is a sham and a fake and that you are not in it for the long-term other than because you were from the outset, seeking to contrive a migration and the marriage is a means to that end.

Overall conclusion

1. After careful consideration of all your claims and evidence, I am not satisfied that you and your spouse have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship; or live together and not separately and apart on a permanent basis: (s 5F(2)(b)-(d).

2. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.

3. Therefore the applicant does not meet cl 820.211(2)(a) and cl 820.221.

4. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Meredith Jackson
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A     Spouse

1. For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

2. If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

1. The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day to day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long term one.

2. If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).